R v Chute (No 11)
[2019] ACTSC 91
•5 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chute (No 11) |
Citation: | [2019] ACTSC 91 |
Hearing Date: | 4 April 2019 |
DecisionDate: | 5 April 2019 |
Before: | Mossop J |
Decision: | See [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Historical child sexual offences – whether indecent assault followed by the infliction of corporal punishment constitutes “an offence involving actual or threatened violence” and therefore a “serious offence” for the purposes of s 319 of the Crimes Act 1900 (ACT) – it does not CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Special hearing – whether appropriate to require accused person to submit to the jurisdiction of the ACAT – dementia patient with health problems – no utility in making orders requiring submission to ACAT |
Legislation Cited: | Crimes Act 1900 (ACT), ss 81, 318, 318(2), 318(2)(a), 318(2)(b), 319 Mental Health Act 2015 (ACT), ss 59, 67, 102, 109 |
Cases Cited: | R v Aleer [2016] ACTSC 75 R v Chute (No 4) [2018] ACTSC 259 R v Smith [2012] ACTSC 146; 269 FLR 233 |
Parties: | The Queen (Crown) John William Chute (Accused) |
Representation: | Counsel V Conliffe (Crown) G Walsh (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused) | |
File Number: | SCC 178 of 2016 |
MOSSOP J:
Introduction
Following a special hearing in this matter, I gave my reasons for non-acquittal of the accused on 14 of the 16 counts which he faced: R v Chute (No 10) [2019] ACTSC 73. In my reasons I made reference to the consequences of a non-acquittal saying that: “For offences of the type charged in the present case, s 318 [of the Crimes Act 1900 (ACT)] describes the powers of the court if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.” I set out the provisions of s 318(2) and made some comment on the difference between that provision and s 319: at [12]. The difference between the two sections is that s 319 applies to a “serious offence” whereas s 318 applies to a “non-serious offence”.
The Crown now contends that one of the offences is a “serious offence” and that therefore s 319 applies in relation to that offence. That is the offence described in R v Chute (No 10) as count 16 involving Complainant 6. The Crown accepts that each of the other offences is a “non-serious offence”. The significance of there being a “serious offence” is that for a “serious offence” the court is obliged to make one of the two orders set out in s 319, whereas for a “non-serious offence” the making of orders is discretionary.
The accused had a religious name of Brother Kostka. In these reasons he is referred to as the accused, Mr Chute or Brother Kostka.
Is count 16 a “serious offence”
Sections 318 and 319 of the Crimes Act provide:
318 Non-acquittal at special hearing—non-serious offence
(1) This section applies if—
(a) an accused is charged with an offence other than a serious offence; and
(b) at a special hearing that is a trial—
(i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or
(ii) by jury—the jury advises the court under section 317 (1).
(2) The Supreme Court may make the orders that it considers appropriate, including—
(a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
319 Non-acquittal at special hearing—serious offence
(1) This section applies if—
(a) an accused is charged with a serious offence; and
(b) at a special hearing that is a trial—
(i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or
(ii) by jury—the jury advises the court under section 317 (1).
(2) The Supreme Court must—
(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
(Emphasis added.)
The critical definition for the purposes of these provisions is that of “serious offence”. Section 300 defines that term as follows:
serious offence means—
(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
(b) an offence against section 27 (3) or (4).
The significant aspect of the definition is that it refers to “an offence involving actual or threatened violence”.
Count 16 is an offence against s 81 of the Crimes Act being a charge of indecent assault of a male person without the effective consent of that person, being a person under the age of 16 years.
The evidence given by Complainant 6 was summarised in R v Chute (No 10) at [128] as follows:
He described that Brother Kostka had a leather strap about 15 inches long and 3 inches wide and that he would punish Complainant 6 if he didn’t do what Brother Kostka wanted him to do. He said that Brother Kostka would make him stand up and touch his toes and then Brother Kostka would feel his genitals between his legs while pushing his legs apart and telling him to spread his legs. He would also fondle his bottom while telling him to bend over more. Complainant 6 feared that he would be strapped on the bottom, but after Brother Kostka had finished “his little caressing over your bum” he would strike him with a leather strap across the back of the knees. All of this fondling was outside the clothing. It is this fondling at the time of applying corporal punishment which gives rise to count 16.
That evidence was accepted beyond reasonable doubt at [175]-[176].
The contention of the Crown is that the offence was so closely associated with the threat of violence or the infliction of violence that it was “an offence involving actual or threatened violence” for the purposes of the definition of “serious offence”. Having the victim bend over with this legs apart was in anticipation of him being struck with the leather strap. Striking the victim with the strap immediately after the indecent assault involved actual violence.
What constitutes a “serious offence” for the purposes of these provisions has been considered in a number of cases. In R v Smith [2012] ACTSC 146; 269 FLR 233, Refshauge J considered whether arson which did not involve any likely harm to other persons constituted an offence involving violence. His Honour concluded (at [60]-[61]) that it did not. In the course of his Honours reasons he said (at [44]):
The only question then is whether arson is an offence involving actual or threatened violence. It seems to me that this means whether the offence, as committed, involves violence, not whether an element of the offence involves violence, for the legislation is clearly protective and should be interpreted that way.
In R v McGuckin (No 2) [2014] ACTSC 365, Refshauge J followed his decision in Smith and found that the offence of recklessly causing damage to property was not a serious offence. He found that aggravated robbery and assault occasioning actual bodily harm were both serious offences.
In R v Aleer [2016] ACTSC 75, Refshauge J was dealing with two counts of arson and one count of assault occasioning actual bodily harm. In contrast to his Honour’s conclusion in Smith, in Aleer his Honour found (at [80]) that the arson did involve violence as “there was a very direct risk to persons who were in the house and who may have been injured if the flames had in fact reached the eaves, or the vehicle had exploded more intensely than it did”. The assault occasioning actual bodily harm and transferred charges of common assault involved a physical attack on one person involving punches to the face and a punch and a kick to another. His Honour found that each of these involved violence so as to make them serious offences: Aleer at [81], [111].
In R v Cross [2017] ACTSC 91; 319 FLR 288, Penfold J was dealing with another case involving arson. Her Honour referred to the decisions in Smith, McGuckin and Aleer. Her Honour found (at [47]-[55]) that the offending did not involve a serious offence because the accused person did not intend to hurt anyone and thought that the people around were safe and able to avoid the fire. Her Honour agreed with Refshauge J’s view that violence or threatened violence towards property did not amount to a serious offence.
I accept the statement of Refshauge J quoted above that it is not essential that violence be an element of the offence. Rather, what must be examined is the offence as committed. It is for that reason that arson may or may not be a “serious offence” depending upon the circumstances in which it is committed. Similarly, an assault of the sort involving a battery may or may not be a “serious offence” depending upon whether the non-consensual touching involves “violence” or not.
In the present case count 16 occurred in the context of, but did not itself involve, the threat of or actual violence. The indecent assault was the fondling of Complainant 6’s genitals and bottom. It was only after that was complete that any violence was inflicted. There was no allegation that that violence was unlawful. While the threat of the infliction of violence provided the context for the offending and violence was inflicted after the offending was completed, I am not satisfied that the offending itself “involv[ed] actual or threatened violence”. In summary:
(a)The “assault” for the purposes of the charge of indecent assault did not involve any “violence”. Rather, it involved a touching of Complainant 6 which did not involve “violence”.
(b)The offending occurred in the context of proposed (and hence “threatened”) infliction of corporal punishment.
(c)The actual infliction of violence only occurred after the offending was complete.
The corporal punishment was not alleged to form part of the offence or be otherwise unlawful. This appears to have been on the basis that the Crown could not exclude beyond reasonable doubt the possibility that the conduct involved reasonable disciplinary measures taken in relation to a child at school. The way in which the case was put was that the lawful disciplinary conduct provided the context in which Mr Chute opportunistically engaged in the indecent assault.
Ultimately, the issue turns on what is meant by “involving”. Is it enough that the violence be closely connected with the offence or must the violence form part of the conduct which constitutes the offence? In my view, the latter interpretation is preferable because:
(a)it is more consistent with the expression “an offence involving”;
(b)it provides a clearer criterion for the application of the definition; and
(c)it does not expand the expression used to cover circumstances not demonstrated to have been clearly contemplated by the legislature.
For those reasons, count 16 in the present case was not a “serious offence” and all of the charges in relation to which there was a non-acquittal must be dealt with under s 318 of the Crimes Act.
Appropriate orders
Neither party contended that it would be appropriate for Mr Chute to be detained in custody pursuant to s 318(2)(a). Having regard to the age, health and personal circumstances of Mr Chute and the absence of any risk to the community, such an order would clearly not be appropriate in the present case.
So far as an order under s 318(2)(b) is concerned, in my view, there would be no utility in requiring that the accused submit to the jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015 (ACT). Mr Chute is 87 years old and lives in New South Wales in a nursing home. He suffers from dementia. His dementia is progressive and irreversible. He suffers from a constellation of health problems described in my reasons in R v Chute (No 4) [2018] ACTSC 259 at [72] and R v Chute (No 7) [2019] ACTSC 67 at [12]-[25]. He rarely leaves the nursing home. The possibility of further offending conduct is negligible. The capacity to improve his circumstances by measures to address his mental health will not be added to by the making of any orders by the ACAT.
Having regard to the permitted content of mental health orders and forensic mental health orders (see Mental Health Act, ss 59, 67, 102, 109), no such order made under the Mental Health Act would serve to increase the protection to the community, improve the health or safety of Mr Chute or provide any other benefit to Mr Chute. Making an order under s 318(2)(b) would simply divert the use of resources of the ACAT for no useful purpose. I will therefore make an order that makes it clear that no further action is required in relation to his non-acquittal.
Order
The order of the Court is:
1. No further action be taken in relation to the non‑acquittal at the special hearing on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 in the Indictment dated 28 September 2017.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 5 April 2019 |
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